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ACTIMIZE LTD.
2003 OMNIBUS STOCK
OPTION
AND RESTRICTED STOCK INCENTIVE
PLAN
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1.
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PURPOSE; TYPES OF AWARDS;
CONSTRUCTION .
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Purpose
. The purpose of the Actimize Ltd.
2003 Omnibus Stock Option and Restricted Stock Incentive Plan (the
“ Plan
”) is to afford an incentive to
employees, officers, Office Holders (as defined below), directors,
subcontractors and consultants of Actimize Ltd. (the “
Company ”), or any Subsidiary (as defined below) of
the Company which now exists or hereafter is organized or acquired
by the Company, to acquire a proprietary interest in the Company,
to continue as employees, officers, Office Holders, directors,
Subcontractors or consultants, to increase their efforts on behalf
of the Company and to promote the success of the Company’s
business.
Types of Awards
. The Plan is intended to enable the
Company to issue Awards under varying tax regimes, including
without limitation (i) as “incentive stock options”
(“ Incentive Stock
Options ”) within the
meaning of Section 422 of the United States Internal Revenue Code
of 1986, as amended (the “ Code ”); (ii) “Nonqualified Stock
Options” as defined below; (iii) pursuant to the provisions
of New Section 102 (“ New Section 102 ” and such options, “
New 102 Stock Options
”) of the Israeli Income Tax
Ordinance (New Version) 1961, as amended, including without
limitation the revisions that came into effect on January 1, 2003
and any other future amendments thereof (the “
Ordinance ”) and any regulations, rules, orders or
procedures promulgated thereunder; (iv) pursuant to Section 3(I) of
the Ordinance (“ 3(I)
Stock Options ”) (all
New 102 Stock Options, 3(I) Stock Options, Incentive Stock Options
and Non-Qualified Stock Options, as well as options issued under
other tax regimes collectively, the “ Options ”); (v) shares of restricted stock
(“ Restricted
Stock ”) under the
Plan; and (vi) other share-based Awards pursuant to Section 12
hereof. Apart from issuance under the relevant tax regimes in the
United States of America and the State of Israel, the Plan
contemplates issuance to Grantees (as defined below) in other
jurisdictions with respect to which the Committee (as defined
below) is empowered to make the requisite adjustments in the Plan
and set forth the relevant conditions in the Company’s
agreement with the Grantee in order to comply with the requirements
of the tax regimes in any such jurisdictions.
The Plan contemplates the issuance of
Awards by the Company, both as a private company and as a publicly
traded company.
Construction
. To the extent any provision herein
conflicts with the conditions of any relevant tax law or regulation
which are relied upon for tax relief in respect of a particular
Option or Share granted to a Grantee, the provisions of such law or
regulation shall prevail over those of the Plan and the
Committee
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(as defined below) is empowered
hereunder to interpret and enforce the said prevailing
provisions.
As used in this Plan, the following
words and phrases shall have the meanings indicated:
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2.1.
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“Award”
shall mean any Share, Option, share of
Restricted Stock or any other Share-based award, granted to a
Grantee under the Plan.
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2.2.
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“Board”
shall mean the Board of Directors of
the Company, as appointed from time to time.
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2.3.
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“Committee”
shall mean a committee established by
the Board to administer the Plan.
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2.4.
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“Companies
Law” shall mean the
Israel Companies Law-1999, as amended.
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2.5.
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“ Date of Grant” shall mean the date specified in the Option
Agreement.
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2.6.
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“Disability”
shall mean the inability of a Grantee
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 6 months, as
determined by a medical doctor satisfactory to the
Committee.
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2.7.
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“Exercise
Period” shall mean
the period in which the Option shall be exercisable.
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2.8.
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“Exercise
Price” shall mean the
amount for which one Share covered by an Option may be purchase
upon exercise of the Option, as specified in the Notice of Stock
Option Grant.
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2.9.
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“Fair Market
Value” per share as
of a particular date shall mean (i) the closing sales price per
Share on the securities exchange on which the Share is principally
traded for the last preceding date on which there was a sale of
such Share on such exchange; or (ii) if the Share is listed on the
NASDAQ National Market, the last reported price per Share on the
NASDAQ National Market on the last preceding date on which there
was a sale of such Share on the NASDAQ National Market; or (iii) if
the Share is then traded in an over-the-counter market, the average
of the closing bid and asked prices for the Share in such
over-the-counter market for the last preceding date on which there
was a sale of such Share in such market; or (iv) if the Share is
not then listed on a securities exchange or market or traded in an
over-the-counter market, such value as the Committee, in its
sole
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discretion, shall determine, which
determination shall be conclusive and binding on all parties.
Whenever possible, if the Shares are listed on a securities
exchange or market or traded in an over-the-counter market, the
Fair Market Value shall be based on prices reported in the Wall
Street Journal.
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2.10.
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“Grantee”
shall mean a person who receives a
grant of Options, Restricted Stock or Shares under the Plan, who at
the time of grant is an employee, officer, director, Office Holder,
consultant or subcontractor of the Company or any Subsidiary
thereof.
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2.11.
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“Initial Public
Offering” or
an “IPO” shall mean the initial public offering of the
Company’s Shares.
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2.12.
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“Nonqualified Stock
Option” shall mean
any Option granted to a U.S. resident, which Option is not
designated as, or does not meet the conditions for an Incentive
Stock Option.
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2.13.
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“Parent”
shall mean any company (other than the
Company), which now exists or is hereafter organized, in an
unbroken chain of companies ending with the Company if, at the time
of granting an Award, each of the companies other than the Company
owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
companies in such chain.
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2.14.
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“Retirement”
shall mean a Grantee’s
retirement pursuant to applicable law or in accordance with the
terms of any tax-qualified retirement plan maintained by the
Company or any of its Subsidiaries or affiliates in which the
Grantee participates.
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2.15.
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“Share”
shall mean the Ordinary Shares of the
Company, par value of NIS 0.01, as adjusted in accordance with
Section 13 of the Plan (if applicable).
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2.16.
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“Subsidiary”
shall mean any company (other than the
Company), which now exists or is hereafter organized or acquired by
the Company, in an unbroken chain of companies beginning with the
Company if, at the time of granting an Award, each of the companies
other than the last company in the unbroken chain owns stock
possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other companies in such
chain.
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2.17.
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“Ten Percent
Shareholder” shall
mean a Grantee who, at the time an Option is granted, owns shares
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or any Parent or
Subsidiary.
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2.18.
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“Trustee”
shall mean the trustee appointed by
the Committee or the Board, as the case may be, to hold the
respective Options, Restricted Stock and/or Shares, if so
appointed.
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To the extent permitted by law, the
Plan shall be administered by the Committee. However, in the event
that the Board does not create a committee to administer the Plan,
the Plan shall be administered by the Board in its entirety.
Furthermore, in the event that an action necessary for the
administration of the Plan is required under law to be taken by the
Board, then such action shall be so taken by the Board. In any of
the above events, all references herein to the Committee shall be
construed as references to the Board.
The Committee shall have the authority
in its discretion to administer the Plan and to exercise all the
powers and authorities either specifically granted to it under the
Plan or necessary or advisable in the administration of the Plan,
including, without limitation:
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(i)
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the authority to grant Options,
Shares, Restricted Stock and other Share based Awards to the
Grantees;
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(ii)
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to determine which Options shall
constitute Incentive Stock Options, Nonqualified Stock Options, New
102 Stock Options, 3(I) Stock Options or otherwise;
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(iii)
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to determine the Exercise Price of the
Share covered by each Option;
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(iv)
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to determine the Grantees to whom, and
the time or times at which Awards shall be granted;
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(v)
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to determine the number of Shares to
be covered by each Award;
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(vi)
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to interpret the Plan;
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(vii)
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to prescribe, amend and rescind rules
and regulations relating to the Plan;
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(viii)
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to determine the terms and provisions
of the Option Agreements as defined in Section 6 below (which need
not be identical), and to cancel or suspend Awards, as
necessary;
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(ix)
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to determine which route - the capital
gains (in Hebrew – “ honi” ) route or the work income (in Hebrew –
“ pairoti” ) route or any other route available under the New
Section 102 shall be adopted for the purpose of New 102 Stock
Options;
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(x)
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and to make all other determinations
deemed necessary or advisable for the administration of the Plan,
including to adjust the terms of the Plan or any Agreement so as to
reflect (i) changes in applicable U.S.,
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Israeli or other laws and (ii) the
laws of other jurisdictions within, which the Company wishes to
grant Awards.
The Committee shall have the authority
to grant in its discretion to the holder of an outstanding Option,
in exchange for the surrender and cancellation of such Option, a
new Option having an exercise price lower than provided in the
Option so surrendered and canceled and containing such other terms
and conditions as the Committee may prescribe in accordance with
the provisions of the Plan or to set a new exercise price for the
same Option lower than that previously provided in the
Option.
All decisions, determination and
interpretations of the Committee shall be final and binding on all
Grantees of any Awards under this Plan. No member of the Committee
shall be liable for any action taken or determination made in good
faith with respect to the Plan or any Award granted
hereunder.
Each member of the Board and the
Committee shall be indemnified and held harmless by the Company
against any cost or expense (including fees of counsel) reasonably
incurred by him, or liability (including any sum paid in settlement
of a claim with the approval of the Company) arising out of any act
or omission to act in connection with the Plan unless arising out
of such member’s own fraud or bad faith, to the extent
permitted by applicable law. Such indemnification shall be in
addition to any rights of indemnification the member may have as
director or otherwise under the certificate of incorporation of the
Company, any agreement, any vote of share or disinterested
directors, or otherwise.
Options, Restricted Stock and Shares
may be granted to employees, officers, Office Holders, directors,
subcontractors and consultants of the Company and any Subsidiary,
provided, however, that Incentive Stock Options may be granted only
to employees of the Company or a Subsidiary. New 102 Stock Options
may be granted only to Israeli employees and Office Holders
excluding any “Controlling Holders” as such term is
defined in the Ordinance. A person who has been granted an Option,
Restricted Stock or Share hereunder may be granted additional
Options, Restricted Stock or Shares, if the Committee shall so
determine. In determining the persons to whom Awards shall be
granted and the number of Shares to be covered by each Award, the
Committee shall take into account the duties of the respective
persons, their present and potential contributions to the success
of the Company and such other factors as the Committee shall deem
relevant in connection with accomplishing the purpose of the
Plan.
The initial number of Shares, NIS 0.01
par value each, reserved for the grant of Awards under the Plan
shall be 6,878,300. In addition to the initial number of Shares
stated above, any Options which were granted under the
Company’s 2000 Plan and 2001 Plan and which have been
expired, cancelled or
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terminated or forfeited for any reason
without having been exercised and therefore returned to the
“pool” of reserved Shares thereunder, shall
automatically, and without any further action on the part of the
Company or any Grantee, be transferred to, and enlarge, the
“pool” of reserved Shares under this Plan (the
“ Added
Pool ”) and shall
again be available for grant for the purposes of this Plan (unless
this Plan shall have been terminated) or unless the Board
determines otherwise. The Board may increase or decrease the number
of Shares to be reserved under the Plan. Such Shares may, in whole
or in part, be authorized but unissued Shares, or Shares that shall
have been or may be reacquired by the Company (to the extent
permitted pursuant to the Companies Law) or by a trustee appointed
by the Board under the relevant provisions of the Ordinance, the
Companies Law or any equivalent provision. Any of such Shares which
may remain unsold and which are not subject to outstanding options
at the termination of the Plan shall cease to be reserved for the
purpose of the Plan, but until termination of the Plan, the Company
shall at all times reserve a sufficient number of Shares to meet
the requirements of the Plan.
If any outstanding Award under the
Plan (including the Added Pool) should, for any reason, expire, be
canceled or be forfeited without having been exercised in full, the
Shares allocable to the unexercised, canceled or terminated portion
of such Award shall (unless the Plan shall have been terminated)
become available for subsequent grants of Awards under the
Plan.
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6.
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TERMS AND CONDITIONS OF
OPTIONS .
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Each Option granted pursuant to the
Plan shall be evidenced by a written agreement between the Company
and the Grantee (the “Option Agreement”
), in such form and containing such
terms and conditions as the Committee shall from time to time
approve, which Option Agreement shall comply with and be subject to
the following terms and conditions, unless otherwise specifically
provided in such Option Agreement.
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6.1.
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NUMBER OF SHARES
. Each Option Agreement shall state
the number of Shares to which the Option relates.
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6.2.
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TYPE OF OPTION
. Each Option Agreement shall
specifically state the type of Option granted thereunder and
whether it constitutes a Incentive Stock Option, Nonqualified Stock
Option, New 102 Stock Option, 3(I) Stock Option or
otherwise.
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6.3.
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EXERCISE PRICE
. Each Option Agreement shall state
the Exercise Price, which, in the case of an Incentive Stock
Option, shall not be less than one hundred percent (100%) of the
Fair Market Value of the shares of Stock covered by the Option on
the Date of Grant or such other amount as may be required pursuant
to the Code. In the case of a Nonqualified Stock Option granted to
any Grantee, the per share exercise price shall be equal to the
amount determined by the Committee or the Board, as the case may
be. In the case of an Incentive Stock Option granted to any
Ten-Percent Shareholder, the
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Exercise Price shall be no less than
110% of the Fair Market Value of the Shares covered by the Option
on the Date of Grant. In no event shall the Exercise Price of an
Option be less than the nominal value of the shares for which such
Option is exercisable. Subject to Section 3 and to the foregoing,
the Committee may reduce the Exercise Price of any outstanding
Nonqualified Stock Option. The Exercise Price shall also be subject
to adjustment as provided in Section 13 hereof.
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6.4.
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MANNER OF
EXERCISE . An Option
may be exercised, as to any or all Shares as to which the Option
has become exercisable, by written notice delivered in person or by
mail to the Secretary of the Company, specifying the number of
Shares with respect to which the Option is being exercised, along
with payment of the Exercise Price for such Shares in the manner
specified in the following sentence. The Exercise Price shall be
paid in full with respect to each share, at the time of exercise in
cash or in such other manner as the Committee shall
determine.
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6.5.
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TERM AND VESTING OF
OPTIONS . Each Option
Agreement shall provide the vesting schedule for the Option as
determined by the Committee, provided that (to the extent permitted
under law) the Committee shall have the authority to accelerate the
vesting of any outstanding Option at such time and under such
circumstances as it, in its sole discretion, deems appropriate.
Unless otherwise resolved by the Committee and stated in the Option
Agreement and subject to Section 13.2, Options shall vest over a
period of forty-eight (48) months and become exercisable under the
following schedule: twenty five percent (25%) of the Shares covered
by the Option at the end of the first twelve (12) months from the
date on which such Option is granted and six and one-quarter
percent (6.25%) of the Shares covered by the Option at the end of
each subsequent 3-month period over the course of the following
thirty six (36) months; provided, however, that (to the extent
permitted under law) the Committee, in its absolute discretion,
may, on such terms and conditions as it may determine to be
appropriate, accelerate or otherwise change the time at which such
Option or any portion thereof may be exercised. The Option
Agreement may contain performance goals and measurements as well as
other criteria other than the passage of time, and the provisions
with respect to any Option need not be the same as the provisions
with respect to any other Option. The Exercise Period of an Option
will be ten (10) years from the date of the Grant of the Option
unless otherwise determined by the Committee (to the extent
permitted under law); provided, however, that in the case of an
Incentive Stock Option granted to a Ten Percent Shareholder, such
Exercise Period shall not exceed five (5) years from the Date of
Grant of such Option. After such five (5) year period, all Awards
not exercised shall be deemed null and void. The Exercise Period
shall be subject to earlier termination as provided in Sections 6.6
and 6.7 hereof.
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6.6.
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TERMINATION
. Except as provided in this Section
6.6 and in Section 6.7 hereof an Option may not be exercised unless
the Grantee is then in the service or employ of the Company or a
Subsidiary thereof or, in the case of an Incentive Stock Option, a
company or a parent or subsidiary company of such company issuing
or assuming the Option in a transaction to which Section 424(a) of
the Code applies, and unless the Grantee has remained continuously
so employed or has continuously performed such services since the
Date of Grant of the Option. In the event that the employment or
service of a Grantee shall terminate (other than by reason of
death, Disability or Retirement), all Options of such Grantee that
are vested and exercisable at the time of such termination may,
unless earlier terminated in accordance with their terms, be
exercised within a period of three (3) months after the date of
such termination (or such different period as the Committee shall
prescribe); provided, however, that if the Company (or the
Subsidiary, when applicable) shall terminate the Grantee’s
employment for Cause (as defined below), all Options theretofore
granted to such Grantee (whether vested or not) shall, to the
extent not theretofore exercised, terminate on the date of such
termination or cessation unless otherwise determined by
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